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April 8, 2010

LA Times asserts prosecutors who apply California law to murderers are "inhumane"

My inner Inigo Montoya from The Princess Bridemust emerge in response to this new editorial in the Los Angeles Times, which is headlined "A death penalty record: L.A. County led the U.S. in capital sentences in 2009. Prosecutors are being overzealous and inhumane." Here is the editorial:

Harris County, Texas, used to be known as the death penalty capital of the United States, the focus of national and global outrage over an outdated, costly and immoral form of criminal justice. But things have changed: Harris County now has a sentencing record that looks like Denmark's, and the hanging judges (or rather, prosecutors) seem to have relocated to liberal Los Angeles.

A recent report by the American Civil Liberties Union shows that Los Angeles County sent more people to death row last year than any other county in the U.S. -- and more than the entire state of Texas. The trend is particularly odd given that most of the rest of the country is headed in the opposite direction. According to the Death Penalty Information Center, the number of death sentences nationwide last year was the lowest since capital punishment was reinstated in 1976.

A spokeswoman for the L.A. County District Attorney's Office says that 2009, when 13 felons were sentenced to death, was an anomaly because some capital cases took years to get to trial. Indeed, although the number of inmates sentenced to death annually was often in the double digits in the 1990s, there were only six in L.A. County in both 2008 and 2007. But that still doesn't fully explain why the office isn't following the lead of prosecutors in the rest of the U.S., who are pursuing fewer capital cases because in recent years some condemned inmates have been shown to be innocent and the economic costs of capital punishment are becoming harder to bear.

Los Angeles isn't the only killer county in California; death sentences were also up sharply in Orange and Riverside counties last year. The rest of the state, though, seems to be more in line with the national trend, according to the ACLU.

California hasn't killed an inmate in four years because of a legal battle over execution procedures, and its condemned population has soared above 700. That exceeds the capacity of San Quentin State Prison's death row, which is in need of a $395.5-million upgrade. Expenses related to the death penalty cost the state $137 million per year, according to the California Commission on the Fair Administration of Justice, at a time when Sacramento is trying to cope with a $20-billion budget deficit.

The cost, of course, isn't the best reason to end the death penalty -- it's that an imperfect justice system cannot provide 100% certainty of guilt, making us all guilty of state-sanctioned murder when the courts get it wrong. That's why most developed nations have done away with capital punishment. In that context, L.A. prosecutors aren't just being overzealous, they're being inhumane.

I think it is quite useful for the LA Times to note that California imposed a significant number of death sentences in 2009. But, to quote another great character from The Princess Bride, I find inconceivable the choice here to respond to this fact by attacking prosecutors as "inhumane."

For starters, local prosecutors have a professional obligation to consider and apply California sentencing law: for them to categorically refuse to pursue capital charges in response to serious murders would be lawless (not humane) unless and until the California legislature repeals the state's death penalty. Moreover, prosecutors do not and cannot decided unilaterally who gets sentenced to death; juries and judges have untimate control over which murderers head to death row. The LA Times should be attacking the state's legislature and juries, not prosecutors, if it is really troubled by an uptick in death sentences. (Indeed, as I have suggested in this recent post, they might also blame appellate courts who've blocked all executions in the state.)

More fundamentally, I cannot understand why or how the label "inhumane" gets attached to prosecutorial decisions to seek the application of duly enacted sentencing law. The acts of many murderers might be fairly described as "inhumane," as might even the fact that the family members of murder victims have now had to wait four years (and counting) for the state to deal with crazy legal battles over execution procedures. But I do not think the word "inhumane" means what LA Times must think it means in this deeply misguided editorial.

Comments

Doug --

Thank you for this. As you correctly point out, for prosecutors to turn their back on existing law would be unprofessional. It is not just the defendant who is entitled to zealous advocacy. It is the state as well.

I guess my other quick observation would be that the LAT brands the city's prosecutor's "inhumane" for seeking the DP without recounting a single fact from a single case in which they did so. Not one.

Posted by: Bill Otis | Apr 8, 2010 11:38:05 AM

It appears to me that the Times is suggesting that prosecutors should pursue fewer DP cases, perhaps exercising a little prosecutorial humility, rather than imitating the hubris of yet another Princess Bride character: "unless I'm wrong, and I'm never wrong..."

Posted by: Talitha | Apr 8, 2010 11:39:33 AM

But Talitha, in capital cases especially the jury is ALWAYS in the loop to tell prosecutors they are wrong about seeing a murder as worthy of the death penalty. I share your view that prosecutorial humility can be a virtue, but this trait seems A LOT more important in NON-capital settings (such as the application of 3-strikes laws in California) in which juries do not have a constitutionally secure role in the sentencing process.

Because juries always have a role in death sentencing (and also because legislatures have been required to narrow which murders are death-eligible), I think prosecutors can (and arguably should) be significantly more aggressive in charging decisions in capital cases than in non-capital cases. Indeed, I think one (of many) virtues of having a jury role in sentencing is that it necessarily prevents any hubris-filled prosecutors from unilaterally deciding the sentencing fate of even the most brutal murderer.

Posted by: Doug B. | Apr 8, 2010 11:54:49 AM

I strongly disagree with this:

"For starters, local prosecutors have a professional obligation to consider and apply California sentencing law: for them to categorically refuse to pursue capital charges in response to serious murders would be lawless (not humane) unless and until the California legislature repeals the state's death penalty."

It is not lawless; it is an exercise of their discretion and properly reflects the contentious nature of capital punishment in this country. Most citizens of San Francisco County do not want their District Attorney to pursue the death penalty. Many residents of states that have abolished the death penalty resent federal interference with their decision to do so, much as states that have embraced medicinal marijuana resent the federal government's ongoing prosecution of marijuana offenses that have been authorized by state law.

I'd also add that personal opposition to capital punishment is not the only reason prosecutors may choose to refrain from seeking the death penalty. The litigation involved is expensive and costly, and particularly in an era of strapped state budgets and reduced inflow of property taxes it would be perfectly acceptable for a prosecutor to categorically refuse to seek the death penalty.

Posted by: Alec | Apr 8, 2010 12:19:07 PM

I am not too familiar with CA's statute, so my comments come from the Alabama perspective: 1. Juries which are death qualified are more likely (statistically) to convict on the top count. 2. Judges sentence. 3. Almost all murders are both capital offenses and death eligible. In many cases, sentencing is resolved at indictment. Throw in elected judges, underfunded defenders, completely unfunded PCR...well, you get the point. Of course, unlike CA, we kill folks here pretty regularly.

I do agree with your point that there are substantially more safegaurds in place in a DP case compared to ordinary offenses and that charging decisions of ordinary offenses is often cursory simply because death is not on the line.

I think I would agree with aggressive charging in a perfect world because it does reduce certain disparities (over/under charging based on race, victim status, social standing, etc.). However, given the realities of misconduct, publicity, death qualifying, just general screw ups and, yes, even cost, I think that aggressive charging can do more harm than good.

Posted by: Talitha | Apr 8, 2010 12:19:39 PM

Alec, would you be confortable with an LA prosecutor categorically refusing to prosecute any murder or rape cases because such cases are are "expensive and costly, and particularly in an era of strapped state budgets" and he personally would rather spend time going after persons not following the med-marijuana regulations?

I share your view that local prosecutors should consider an array of factors in deciding how to exercise their vast discretion when bringing charges and use limited state resources. But I do not think they should CATEGORICALLY nullify laws they personally dislike or personally think are too costly UNLESS they have run and been elected on a platform in which they have told voters that the plan to have their person judgments trump general state policy. If mere personal opposition and hidden agendas drive local prosecutorial choices, these choices ARE lawless. But a transparent and public accounting of such choice can make them more legitimate.

Critically, however we sort out the claim of lawlessness, I do not think an assertion that prosecutors are being "inhumane" makes any sense at all. And it especially undercuts an ability to criticize other prosecutorial choices that might sometimes actually merit this pejorative label.

Posted by: Doug B. | Apr 8, 2010 12:35:17 PM

"Alec, would you be confortable with an LA prosecutor categorically refusing to prosecute any murder or rape cases because such cases are are "expensive and costly, and particularly in an era of strapped state budgets" they personally think it is more useful to spend time going after persons not following the med-marijuana regulations?"

This is not that situation; it is not a categorical refusal to prosecute any type of case, it is a categorical refusal to seek a costly sentence in lieu of life without parole. There's simply no comparison.

A prosecutor who decides that they will no longer prosecute capital cases will be held accountable in the next election. The same would be true of a prosecutor who declined to prosecute, say, nonviolent drug offenses. In either case it is probably futile to sort out "mere personal opposition," as cost savings will be a legitimate factor in virtually every case. Ultimately, however, there's a) no method of policing their use, or abuse, of their discretion outside of the political process and b) they are not nullifying the law, but rather refusing to apply what amounts to a sentencing enhancement.

I do think that there's an argument to be made that say, referral of all cases of a certain type (certain drug offenses and child pornography cases come to mind in the CA context) to the Justice Department or on the part of the Justice Department to state prosecutors may be an abuse of discretion. After all they are tasked with the responsibility of enforcing those laws, not passing the matter over to another agency that also has jurisdiction. Even there, though, there's an argument to be made for cost savings and I think it can easily be appropriate.

Posted by: Alec | Apr 8, 2010 12:55:42 PM

Alec --

"A prosecutor who decides that they will no longer prosecute capital cases will be held accountable in the next election."

And if he were to be defeated in the next election by an openly pro-DP candidate, would that dissuade you for even a minute from making the arguments you've made today?

P.S. The public is well aware that the DP is costly. A majority also believes we have executed an innocent person in the last five years. But the verdict is in: Notwithstanding those facts, an even bigger majority suppoet the DP, and half think it's not used often enough, http://www.gallup.com/poll/1606/death-penalty.aspx

Posted by: Bill Otis | Apr 8, 2010 1:16:26 PM

Bill,

No not at all. My argument has nothing to do with the merits or demerits of capital punishment.

As far as what polling reveals, it is a poor substitute for county elections. Additionally, it is possible for people to support the death penalty in the abstract and to oppose it as applied in most cases. Regardless, that has nothing to do with a prosecutor's discretion to refrain from bringing capital cases.

Posted by: Alec | Apr 8, 2010 1:23:11 PM

Alec --

One other thing you said caught my eye: "...they are not nullifying the law, but rather refusing to apply what amounts to a sentencing enhancement."

Categorically refusing to apply a "sentencing enhancement" provided by statute (and categorically is what you recommend) is, for any practical purpose, nullifying the law creating capital punishment.

P.S. I'm guessing from the tenor of your comments that you're an abolitionist. Is that correct? Has there been any execution since Gregg you approved of? McVeigh's? Anyone's?

Posted by: Bill Otis | Apr 8, 2010 1:27:05 PM

Alec --

"Additionally, it is possible for people to support the death penalty in the abstract and to oppose it as applied in most cases. Regardless, that has nothing to do with a prosecutor's discretion to refrain from bringing capital cases."

Actually it's the opposite. It is OPPOSITION to the death penalty that tends to diminish when confronted with a particular case.

At the time of McVeigh's case, 59% supported capital punishment generally, and 31% opposed. When Gallup then asked them whether they supported or opposed capital punishment for McVeigh in particular, 81% supported and 16% opposed. In other words, roughly half of those who generally were against the DP switched sides when confronted with the Murrah Building massacre.

Are you aware of any case specific case in which the opposite happened?

Posted by: Bill Otis | Apr 8, 2010 1:37:15 PM

Bill,

Well I don't really view that as nullification, but rather an appropriate exercise of discretion. Additionally the law would still exist (and probably be in use in other counties). It's just a reflection of judgments made by an elected official within the bounds of their discretion.

Yes, I support the abolition of the death penalty. I am open to supporting it, in theory, for crimes against humanity provided it is enforced uniformly and even handedly. Because I doubt that can ever be the case, for all practical purposes I oppose it. Which is not to say, of course, that I think it is unconstitutional or even the most pressing area of sentencing reform.

Posted by: Alec | Apr 8, 2010 1:43:09 PM

"Well I don't really view that as nullification, but rather an appropriate exercise of discretion. Additionally the law would still exist (and probably be in use in other counties). It's just a reflection of judgments made by an elected official within the bounds of their discretion."

In other words, the "geographic disparity" argument so often made by the anti-DP side is bogus. The disparity across counties is local democracy working as designed.

The people of San Francisco have, in fact, effectively nullified the death penalty in that county by electing a DA who never seeks it. Cal AG does have the constitutional authority to step in when the law is not being enforced in a county but so far hasn't used it.

Thank you for the candor and promptenss of your answer. As you demonstrate, argument beats insult every day.

Posted by: Bill Otis | Apr 8, 2010 2:03:27 PM

"More fundamentally, I cannot understand why or how the label 'inhumane' gets attached to prosecutorial decisions to seek the application of duly enacted sentencing law."

Doug: Just becuase a duly enacted law permits a certain punishment does not mean that the duly enacted law is humane. For example, drawing and quartering as well as electrocution or a three-drug versus one-drug death cocktail is now viewed in some quarters as inhumane. Blackstone can educate you about British common law judges who knew that some of the Crown's sentencing laws were inhumane and applied a little equity to avoid the indiscriminate harshness.

Posted by: k | Apr 8, 2010 2:18:22 PM

Mr. Bill: "A majority also believes we have executed an innocent person in the last five years."

The Times is saying that is inhumane and the Times is correct despite the Zeitgeist in opposition.

Posted by: George | Apr 8, 2010 2:43:11 PM

Hey K, I would not be so troubled if the LATimes was saying that Cal's continued embrace of the 3-drug protocol is inhumane or that conditions on death row are inhumane or that requiring GPS tracking of people like wild animals is inhumane.

But this editorial is saying that prosecutors' decision to sometimes seek a death sentence in response to a severe murder --- which seems to be what their very job requires --- is "inhumane." That strike me as a misuse of the term --- especially given that, as I note, it is pricipally because so many humans in the general public, legislatures, juries and judges enbrace/encourage the notion that certain murderers merit a death sentence that this remains a part of a responsible California prosecutors' job requirements.

Posted by: Doug B. | Apr 8, 2010 3:13:02 PM

Dr. George --

"The Times is saying [executing an innocent person] is inhumane and the Times is correct despite the Zeitgeist in opposition."

The Times' charge of inhumanity was sparked by the fact that LA County returned 13 death sentences last year, yet very conspicuously the paper does not claim that a single one of the condemned is even arguably innocent. How can it be inhumane for Los Angeles prosecutors to seek, jurors unaanimously to impose, and judges to enforce, a legal sentence against persons who guilt of premeditated murder is no longer even contested, much less subject to serious doubt?

I don't mind the charge of being mistaken; that's normal argument. What I mind, like Doug, is the charge that the people in the LA County system are "inhumane." As respects the reasoned debaters on this blog, I never claim that abolitionism is "inhumane," even though abolitionism would, according to the healthy majority of recent academic studies, cost many, many innocent lives through loss of deterrent value. The reason I never label reasoned abolitionists as "inhumane" is that it's insulting and diversionary, and denies their good faith. They should respond similarly.

And now, for your further enjoyment, below is my full answer to the editorial, which I posted earlier today as a guest blogger on Crime and Consequences, http://www.crimeandconsequences.com/crimblog/2010/04/taking-pomposity-to-the-next-l.html:

The Los Angeles Times features an editorial condemning the city's prosecutors for seeking, and getting, the death penalty 13 times last year. The editorial's concluding paragraph states:

"The [death penalty's] cost, of course, isn't the best reason to end [it] -- it's that an imperfect justice system cannot provide 100% certainty of guilt, making us all guilty of state-sanctioned murder when the courts get it wrong. That's why most developed nations have done away with capital punishment. In that context, L.A. prosecutors aren't just being overzealous, they're being inhumane."

It would take more than the length of a readable entry on this blog to spell out everything that's wrong with the editorial, so forgive me for going after the low-hanging fruit.

First, the paper discusses the "inhumanity" of the death penalty without describing a single fact in a single case in which the jury imposed it. One might suspect that the omission is a deliberate attempt to hide the horrifying details that convinced 12 normal citizens to choose capital punishment.

Second, the editorial doesn't even make a pretense of acknowledging, much less addressing, the arguments that have convinced California (and national) voters to support the death penalty by 2-1. Has it struck the editorial writers as odd that such a large swath of humanity is "inhumane"?

Third and relatedly, the only advocacy groups cited are, guess what, the ACLU and the DPIC. Indeed, the editorial is little more than a cheering section for the ACLU report it cites. It's perfectly proper, though mistaken in my view, for a paper to oppose the death penalty. But it's cheap journalism just to echo someone else's press release.

Fourth, the paper repeats what I'm sure it does not intend to be the racist canard that most "developed countries" have ended capital punishment -- never mentioning that culturally well developed but non-caucasian countries like Japan, India and South Korea retain it, not to mention most of the world's population.

Last for now, the editorial astonishingly labels as "inhumane" the city's prosecutors for applying state law and making good on their professional obligation to represent their client. That's not what we heard from liberals when the question was the propriety of the lawyers comprising the "DOJ Seven" when, in private practice, they represented their clients, notwithstanding that the clients were jihadists.

Posted by: Bill Otis | Apr 8, 2010 4:52:51 PM

Bill cites polls suggesting most Americans support the death penalty...as if majoritarian views are somehow intrinsically linked to just outcomes.

But guess what, Bill, a super majority of posse members in the "Ox-Bow Incident" favored the death penalty...and nonetheless ended up hanging the wrong guys.

Fact is some of the studies Bill seems to be referring to (he didn't cite any by name) have been debunked in peer-reviewed journals as shoddy science.

Beyond that, does it really matter that the Times editorial writer's exuberance prompted a questionable word choice?

We don't seem to be debating the Times' "overzealous" characterization. And the context IS the ritual killing of inmates. Should we be relieved to think that it is only zeal that prompts an upsurge of death penalty cases as opposed to inhumane sensibilities?

After all, the executed inmate is just as dead either way.

Posted by: John K | Apr 9, 2010 7:22:19 PM

John K --

1. At no point did I imply that majority views are "intrinsically" linked to just outcomes. (Of course neither are minority views. Did you forget that?). In a democracy, however, the majority runs the show absent a Constitutional bar on its wishes. And one speaking from so outmanned a position as yours should show modesty, not self-congratualtion for supposedly being morally superior to so many people around you.

2. Works of fiction are all well and good. I prefer the outcome in court. What case do you offer in which A COURT HAS HELD that we've had an "Ox-Bow Incident" in this country since Gregg 34 years ago? And more to the point of the editorial you defend, in which of the 13 cases is there an even a sensible argument that the defendant didn't do it?

Shame on you for making up propositions I never advanced. What I said was that the majority of recent studies establish that the DP deters murder. Conspicuously you do not contradict that, and could not truthfully do so. I have previously given the citation to where the studies may be found. If you missed it, here it is again:
http://www.cjlf.org/deathpenalty/DPDeterrence.htm. There are a whole bunch of them. Happy reading.

Of course the truth of it is that it wouldn't make a difference to you if 50 consecutive studies all showed deterrence. Abolitionists simply cannot afford to lose this point, because if, as the studies show, the DP saves innocent life -- indeed dozens if not hundreds of innocent lives -- abolitionism, for practical purposes, becomes a dead argument instead of merely one that's in the infirmary.

4. "Beyond that, does it really matter that the Times editorial writer's exuberance prompted a questionable word choice?"

Yes, particularly where the word, "inhumane," is inflammatory, insulting and false. In journalism, words matter, they being the profession's sole inventory. And having been a journalist yourself, surely you must know that editorials, particularly in a huge paper like the LAT, are not the product either of a single writer or of "exuberance." They are drafted and re-drafted, and sent up the chain for review.

Did you seriously did not know that?

But that's not all. The word was used twice. Check it out for yourself: http://articles.latimes.com/2010/apr/08/opinion/la-ed-death8-2010apr08.

"We don't seem to be debating the Times' "overzealous" characterization."

Speak for yourself. And while we're at it, which case do you think was a product of overzealousness (as opposed to professionally expected zealousness), and why do you think so?

"And the context IS the ritual killing of inmates."

That sentence itself shows that words matter and that you know they matter. Executions in this country have zip to do with "ritual," a word you use to conjure up a scary but phony image of cults, pagan rites and some pre-modern tribe about to make an offering to the gods.

Baloney. The DP is administered only after the most elaborate and demanding legal process in the world, and nowhere is this more true than in California. Your attempt to portray the years and years of state and federal judicial review as a night of voodoo is just astounding.

"Should we be relieved to think that it is only zeal that prompts an upsurge of death penalty cases as opposed to inhumane sensibilities?"

You should be relieved to discover that someone in the DA's office actually cares about bringing justice to killers under a law that enjoys broad public support. Somehow, though, I don't think you are.

Posted by: Bill Otis | Apr 9, 2010 11:38:28 PM

The article says that we are all guilty of state sanctioned murder when the courts get it wrong. Oh contre. We are all guilty of state sanctioned murder whether the guy is guilty or not. What part of Thou Shalt Not Kill does thou not get?

The confederates at Andersonville cried poverty when they let all of those prisoners starve to death. The fields around the prison (ironically called Fort Sumter) were abundant with food. The federals only hung one guy for those crimes. Google Andersonville on the image section and look at the pictures. This is America. The Governer Actor is crying poverty now yet still locks up five guys to a cell and denies medical care to locked up humans.

Posted by: mpb | Apr 10, 2010 12:00:04 AM

mpb --

"The article says that we are all guilty of state sanctioned murder when the courts get it wrong. Oh contre. We are all guilty of state sanctioned murder whether the guy is guilty or not."

At least this explains why you adopt the odd stance of not caring if he's guilty. But the more important point, which you ignore now for about the tenth time, is this: When capital punishment is adopted by democratic processes in an open society like ours, ratified by the courts an consistent with the Constitution, found applicable and warranted by a unanimous jury of impartial citizens, and enforced only after years and years of judicial review, that is not "murder" of any sort. After all this time, you still adopt a definiton of "murder" that would only be recognizable in Belleview, if there.

"What part of Thou Shalt Not Kill does thou not get?"

What part of the separation of church and state does thou not get? Even if this Biblical rule were understood to bar all killing, which it isn't and never has been, it does not control secular law. If you want religion to dominate law, go to Iran, where it happens rountinely.

Posted by: Bill Otis | Apr 10, 2010 10:52:51 AM

Bill –

1. I don’t recall ever introducing polling results in DP arguments.

2. Ox-Bow was merely a book/movie analogy to illustrate the point that popular opinion and justice don’t always walk hand in hand. No, I know of no pending lynch-mob cases.

The question in the 13 California cases isn’t whether they “did it” but whether the DP is the appropriate punishment.

3. Since we’re talking about word choice here, I would argue the deterrence studies you alluded to didn’t “establish” anything. They offered evidence in support of a hypothesis; and as I noted, their peers apparently feel they did a poor job of it.

In my phrase, “put the question to rest,” the “question” I’m referring to is whether the DP in fact deters murder…not whether the DP should or shouldn’t continue to exist (there are other pro-DP arguments as you well know).

4. Words do matter in journalism but newspapers have changed a lot in the last few years. Those that haven’t gone broke survive with drastically reduced budgets and significantly smaller staffs.

And I’d be surprised if the “chain of review” at the LAT isn’t a good deal shorter and weaker than it once was; Consider, too, its publisher was formerly the CEO of a breakfast cereal company.

Nonetheless, I concede the word “inhumane” in that context would never have gotten past top editors or publishers who checked off on my editorials (in part because of the needless distraction it would cause). I further concede I wouldn’t have used the word (though some mischievous alternatives do come to mind).

The fact remains, as the editorial accurately noted, L.A. County prosecutors are bucking national and international trends by pushing the DP as aggressively as they do, and the newspaper was right to challenge them. (Incidentally, I worked for the DA’s “spokesperson” in the 1980s when she was city editor of the L.A. Daily News).

Beyond that, I looked for “reporting” that might have inspired and informed the editorial but found none in what’s available on the LAT site.

It’s tempting to rant about pots and black kettles given your steamy reaction to the phrase ritual killing: “…ritual…a word you use to conjure up a scary but phony image of cults, pagan rites and some pre-modern tribe about to make an offering to the gods.”

But I won’t, other than to note prosecutors routinely stuff charging documents with just that sort of incendiary language…presumably to conjure up scary, phony imagery calculated to make defendants look more sinister.

You say, “…The DP is administered only after the most elaborate and demanding legal process in the world, and nowhere is this more true than in California. Your attempt to portray the years and years of state and federal judicial review as a night of voodoo is just astounding.”

Yet somehow they still manage to get it wrong from time to time.

I am delighted we have DAs eager to bring justice to killers. I’m just not convinced executions are the right way to do that.

Posted by: John K | Apr 10, 2010 2:18:58 PM

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